tv [untitled] April 17, 2012 9:00am-9:30am PDT
get enforcement. when you get to the section called the policy implementation, specifically 67.34, when i read the first sentence, i think it is the key sentence. that is focusing whether or not the violation of the sun shine ordinance, a willful violation would be deemed to be official misconduct. that is the concern because the official misconduct when you go to the charter for elected officials is a very important phrase. and without that language, one could say that the elected official can violate the sunshine ordinance, and it might be willful, but there would be an argument on his or her part.
it doesn't rise to the level of official misconduct. that is what the paragraph was concerned about. and the next sentence saying that it should be handled by the ethics commission, that is the way the charter provides. it goes to the ethics commission. when you get to 67.35, a much more broadly worded section, d says "any person may institute proceedings for enforcement and penalties under this act. that there has been some order
somewhere, or he or she has made application for public records, and they have been rejected or ignored." regardless of who that individual is, so long as it is public record under the control of any public official, it can go to court, or they can go to the ethics commission. it seems to me that the section was intended -- go to a court or go to the ethics commission, and the ethics commission and it whishes -- it does what it wishes to do at that point.
i just, i don't see how you can read 67.34 as a limitation going to 67.35. >> if i could just jump in quickly -- >> could you please come to the microphone, for those who have hearing disabilities. >> i will. i apologize the public could not hear that. what i said was i agreed largely with what he eloquently described. i think it is 67.34 is not necessarily exclusive. it does not preclude the commission from handling broader matters.
that is not to say -- there is ambiguity. you could certainly potentially read this as limiting the ethics commission to willful misconduct because of this phrase, "under this act." i think that is part of the reason this is so complicated, there is language that is ambiguous and potentially problematic. i think it can be read both ways. i think we would be implementing the purposes of the act more consistently under one reading vs. the other. >> so, i agree in part. i think we need more clarification. for me, 67.34 is siloed. it is specific to willful fair year, and it is a concept that does not come up air we're -- it
is specific to willful failure, and as a concept that is the, any place else. it is a term that is specific to the ordinance. but it states that willful failure, whether it is state law or sunshine ordinance, "shall be deemed." those are important three words, "shall be deemed" as willful misconduct. that is not " "may." it is "at shelby" which means that it is. the question, which i agree with, is it what it rises to willful failure at that point? our stance on this is when we come to the point of finding willful failure that we have taken great pains, we have gone
through a complete process. it is not just done in one stroke. it is done up through numerous amount of weeks at it and trying to get a violation settled, whatever the complaint is to be settled. and if it does not come to pass and the person does not respond, it does not comply, then they are actively refusing to do it. then it rises to the level of willful failure. that is where the ethics commission comes into play, because willful failure shall be deemed official misconduct. those issues under the charter are handled by you. that is where i see 6734, silo for those particular purposes and violations. for 67.35, that is exclusive of the sunshine task force. that is where somebody,
individually on their own, is able to go out and actually try to get this resolved on their own. that is why in every sentence, it pretty much asserts that it is any person. indeed, the act is the sunshine ordinance. it is not just 67.35, is the entire body of the ordinance itself that is the act. it claims to be the same as the brown act or the public records act. that is where the ordinance gets drawn, draws its authority from. and its jurisdiction. so i would see there that is exclusive of the ordinance, the sunshine taskforce, that somebody did not want to go through that process and want to go straight to court or they could come straight to do, but
it is only after they have made contact with a senior state official. that is supposed to take action on it. and the last part of that sentence. so they cannot come to you until they have exercised or exhausted their complete with a city or state official. -- or exhausted their complete with a city or state official. >> i just want to remind everyone, 67.30c, which is where the ethics commission has the jurisdiction to hear cases that we sent to you for enforcement. i think the plain language of that is very clear, that it is in our purview to hold hearings about complaints that are brought to us, and we have a very lengthy process for doing
this. then when we decide the order has not been complied with, after all of this time and effort, we refer these cases to you for enforcement. i guess this does not seem to specify whether it is willful or not willful, or a city official or the head of a commission, so forth. >> following up on that, how do you read a 67.30c, the provision you were talking about, where you would get the task force seeking referrals to the ethics commission for nine willful violations -- non-willful violations? how does that interplay with 67.35d that we were just talking
about in terms of a person being able to come before the ethics commission, but only if action is not taken by a city or state official? how do you will see that? >> can i answer that? can i answer that? >> i just want to clarify, and then i want to hear from mr. grossman. you have to look at the process. 67.21e, that is the hearing. we provide a method for hearings. once the hearing is done, if we wish to defer to another municipal body with enforcement power, that is where 67. c -- 67c is about. at 67.35 is to circumvent all of that, not go to supervisor records, not go to the sunshine ordinance task force, where they
are actively trying to adjudicate them selves on the run. but say they cannot get a record. they then called the city official, they call the mayor's office. if the mayor's office does not take any action on it 40 days, under sunshine ordinance, they can go directly to you or they could go to court to get satisfaction. >> you are not seeing 67.35d as the basis for the commission authority to hear non-violations for the task force? >> it is not for the task force. it is for any person acting on their own volition. if you look at a, b, c, you have to start with a. it talks about any person who has a complaint. that is what we are talking about here. we're not talking about the task force, we're talking about any
person. and there are many different ways a person can exercise their rights under the sunshine ordinance to be able to get records. one way is through the process, as outlined 67.21. the other process is 67.35. >> ok, i see. >> ok. with all due respect, being the only lawyer on this side of this group, i have to re-state what i think i have stated a number of times. i first want to mention what i was getting to what i could not quite finished about this letter. >> mr. grossman, what we're trying to do here -- i appreciate you being willing to this -- >> what we're talking about is 67.34 and 67.35d, and that is
what you have been talking about. >> right, but what we were hoping for was an answer to the commissioner's question. >> i am going to. >> if you could start there. >> you have to look at all of those sections in order to understand what 67.35d is all about. there are three different ways a case can come to the ethics commission. two are described in 67.34, and one is described in 67.35d. of course, there is also the task force power under 67.30c to send it to you for enforcement. 67.34 talks about a willful failure to do a duty under any of the public records or public
meetings laws. that failure, that will fill failure is official misconduct, the finding of that. official misconduct is to find that in the charter as a certain level of behavior, and it also says that a finding of official misconduct anywhere else is an official misconduct under the section that gives you jurisdiction over official misconduct. there are 15 other places in the charter or official misconduct can be found. this is one of them, okay? that is a whole subset that is governed by a special set of rules, which you are going to deal with very soon. the second part of 67.34 deals with willful violations. that is different. it is focused on a violation of
the ordinance, and that is a finding that can only be made by you under 67.34. ok? and that makes sense, because that is what these proposed regulations deal with. then there is the non-willful cases, and those are the ones under 67.37c come to you because of failure to comply with an order is a task force of the ordinance. and when it is such a simple violation, it goes to the ethics commission. and that violation has occurred because the task force has gone through its entire process, two full task force meetings, a compliance and amendments meeting, and made a final determination that it needs to have this violation corrected
and an order enforced. and that is what you are talking about when you are talking about jurisdiction. and that risdiction is found in 67.35e, which says if under 67 decimal 21, neither the attorney general or the district attorney do anything, for a certain time, the individual, the person can go to you or go to court for enforcement. for enforcement, because allows police. because if you did not have the pedal the language, then the court and 67.35a would simply do what it would normally do, which is order the record set out, you are entitled to be records after the attorneys' fees are paid. that is the structure. this confusion between a willful
violation and it will fulfill your and simple violation, that has all been known to your staff when they did these proposed regulations, way back when. and that is a distinction we were making in the draft that was submitted last august. >> thank you, mr. grossman. commissioner? >> i'm sorry. i think i am staying with the point. i feel like there are several here, and this is tricky territory, but there is something that has troubled me every single time, and that is the sentence within 67.30c that we have been talking about. i hate to obsess over race for letter connective word, but the crux for me is with enforcement power.
this is very clear that the task force shawmut referrals to a municipal office with enforcement power -- this is very clear that the task force shall make referrals to a municipal office with enforcement power. but it does not say, as mr. grossman said, it should have said for enforcement. but that is not the language of the ordinance. it says with enforcement, and that leaves me dangling. with this language i would have said, wait, to do what? so i am left saying, you are right, it is very clear, with enforcement power, we are one of them, whenever it concludes one of us, and it tails off, leaving me with that question that is so
important about where we pick up our responsibility. i'm sure that i now have to go to our authority. this talks about the task force's authority. i have to find the second part of that passed through these woods by saying, well, i got it, and the information with the authority, but what is it the ethics commission is supposed to do? i am left feeling this does not tell me, so i have to look at the ethics commission. 's authority, and we did not have something that just says you can and for somebody else's findings. that takes me back to feeling, or do began, commissioner, is a logical place -- the effect of the task force finding is to shift the burden. it brings it to us with a finding, without a work and a
foundation that has been set, but we have to pick it up and do what is our job, which is to make a determination on our authority, and it is perfectly fair for us to do that, relying on the task force to shift the burden, which for anybody who had to go through this, you would know that as a big deal, the difference between you have to prove it or i have to prove it is quite meaningful and is respectful of the task force efforts to that point. but the sentence so clearly does not say "for enforcement" i feel like i have to find myself. clearly it is something you have talked about, but that is an important pivot for me. >> when i write the referrals, under 67.34c, what you are
talking about, interpreting -- when we refer that, the intent is, why would refer to something with enforcement power? it could be interpreted to anything other than to enforce it would be difficult. but we combine that with 15.102, which gives you the authority to carry out the purposes and provisions and ordinances regarding open meetings and public records. that gives you the authority. you are allowed at the ethics commission to write rules and regulations based on that open government laws. and because you did not hear a lot of them, one of the things that is different, don in court, is that all records are public. you don't have to prove they are public. the person who wants to withhold it has to demonstrate there is an existing exemption.
that is why the burden shifts. you see what i'm saying? when you go to court and somebody makes an accusation, that person has to prove the accusation. when the complaint says i went public record or public information, and the california public records act and in the sunshine ordinance, it requires the person who wants to withhold that information to provide a reason, an exemption. >> could i just say -- >> yes. >> i think the bird and i am describing it is at the next page. i understand what you are saying. -- i think the bird and i am describing it is at the next stage. it has to make that case to us. >> my point in saying that was just -- maybe i did not make myself clear, but i was trying to dress just what you are saying, and that is that our
order is generally telling you this is public information, and you need to provide it. so enforcing it, the person would need to tell you why they should not have to turn it over. it would almost be the same idea. when we send something for enforcement, we want them to turn over the document. we are not necessarily asking you to punish them in some way. say we send the order saying, we find the respond that it improperly withheld a document, and they will not release, they will not disclose it. so we refer it to you. when it came to you, we might say that we were referring this under 15.102, and under 67.30c, and what we want is the document. we want to the planet to receive their information. so you will still be faced with
this idea, whether there is an exemption or not. it is a public record. i am just addressing how we combine that when we send them over. >> the commissioner asked me how i saw 67.30c and 67.35d interacting. i can imagine some areas where we have made it the task force has made an order of determination. that order of determination is for a person to, in most cases, to receive documents that are public. so i think he could read 67.35d in such a way that that person has an order to be enforced and
to bring that to the ethics commission. we are doing the referrals for that person. i'm not an attorney, on a college professor. -- i'm a college professor. but reading the plain language of it, that makes sense to me. >> you mean the task force gives an order to the person, and the person -- >> the order is on the behalf of the person, the complainant. the complaint that has requested this public document. but they want the ethics commission to help that person obtained that information. that is the primary purpose. there are all kinds of ways city employees can violate the ordinance, and timing and not showing up at the meetings, but at the very bottom, the most basic thing is that the public its records and the public has access and public meetings.
>> i'm very sensitive to that, and fully understand, but the goal here is to make sure the ordinance is complied with. i think now is a good time to move to the enforcement question. i think it is one where we have already had a lot of discussion. >> can i ask one question, mr. grossman? mr. grossman, you said from your point of view, that when the task force issued an order, when the complaints come to them, and the task force says the documents and public record should be produced, and it is not produced, that is a separate violation of the sunshine ordinance? >> a violation. >> how was it a violation?
the violation is the failure to turn over the document that they have been ordered to produce. >> i'm willing to accept that. either way, it is a violation. either the initial failure that has been determined to be a failure by the task force, which then is a violation, which the custodian under 67.21e can remedy by turning over the records. if the custodian does not do that, it becomes a violation that can then be moved by action of the task force to another body for enforcement. it need not be the ethics commission. >> but what is being moved to the other body is the underlying
violation? >> well, it is probably the failure to comply with the water. -- with the order. but the point i was just alluding to is the reference in 67.35d to a person seeking a remedy before the ethics commission is for enforcement. because the task force is not always referred these violations to the ethics commission. it can refer them to other bodies, as it has. >> thank you. >> on the question of enforcement, i think two competing concerns, my perspective on this, the first is to expediently resolve the matter so the person -- so be a violation is remedied, the purported violation is remedied. the second concern on the ethics commission is when we enforce
the matter, i think we have to have some review of what we were given. if a court were to receive a request to enforce, there would be some review of what we were asked to enforce. it would not just be and it administrative matter, ok, here is, stamped it, wanted the next one. one thing i had in mind was to have a hearing where the respondent -- i'm sorry, where the complaint, who had an order from the sunshine ordinance task force that was not being complied with would submit directly to the commission, no involvement of staff, and we would have a show cause hearing as expediently as we could, at the next regularly scheduled meeting, where the matter would be adjudicated. i